Colonels in Horsehair

The United Kingdom is a good place in which to assemble a book of sceptical essays about human rights, but was 2001 a good year in which to do it? True, by then Scotland and Wales had operative devolution statutes which obliged their Governments to observe the European Convention on Human Rights in all they did; and some interesting decisions had already been thrown up north of the border. But the big one, the UK’s Human Rights Act, although enacted in 1998, had been put on a slow fuse to enable the country to get ready for it, and it was not until October 2000 that it was brought into force.

By then all hats were in the ring: liberal opinion had hailed a new dawn, and conservative opinion, both left and right, had predicted a bonanza for cranks and lawyers. It was a safe bet that neither would be proved wholly right, but there was no hope, and there will be none for a few years yet, of assessing whether the new system has significantly changed the way the country is run. This volume of sceptical essays thus sits uncomfortably on the millennial cusp, looking back at a past which is now over and forward to a future which has barely begun. Even the sound pieces on Scotland, Northern Ireland and Wales, all of which have somewhat richer recent experience than England, are rightly tentative.

According to the mission statement riskily disclosed by the editors, these essays critically examine ‘the extensive shift of political authority to the judiciary’. Now what extensive shift would that be? The judge who held that the Home Secretary was violating Louis Farrakhan’s Convention right of free speech by denying him entry to Britain was told recently by the Court of Appeal that the Home Secretary was the best judge of these things. The court which concluded that the town and country planning system lacked independence at its apex and so failed to afford fair hearings was patiently told by the House of Lords that the whole point of the planning system was to give policy the last word so long as it stayed within the law. The nascent right of privacy which some of us thought we heard drawing breath is still in the incubator, with an uncertain prognosis.

If you turn to the comparative essays grouped as ‘The Experience of Elsewhere’ which end this book, you start to see why. How much or little judges make of human rights seems to have not a lot to do with the tools the legislature hands them. We know that since its 1982 Charter of Rights and Freedoms came on stream, Canada’s polity has been profoundly altered both by the decisions of the courts about what legislatures can’t do, and by legislators’ and administrators’ fears of what will happen if they try. Judy Fudge’s thoughtful and factual piece tracks the jurisprudential politics of two decades of Charter litigation. She points out how early Charter liberals have become disillusioned as a fightback by the well-heeled National Citizens’ Coalition has resulted in three out of four Federal elections being fought without effective legislative restraints on political advertising, with outcomes much to the satisfaction of the advertisers. ‘There you are,’ a sceptic looking only at Canada would say: ‘give the judges a bill of rights and they take over the country.’ But Canada had had an earlier Bill of Rights, passed in 1960, under which the courts managed to decide little more than that a First-Nation Canadian had as much right as a white man to be drunk in the Old Stope Hotel, Yellowknife. By the 1980s something new had stirred in Canada’s judicial ethos; possibly the same thing as in Australia where, in the early 1990s, the Federal High Court discovered in the country’s 1901 Constitution, which provides for elections but says almost nothing about human or civil rights, a power to strike down in the name of free speech legislation which imposed controls on political advertising in the run-up to elections. Since then the Australian courts have been in partial and – Adrienne Stone’s essay contends – disorganised retreat towards an ill-defined middle ground.

But it’s only if you stand back, with the variegated experiences of Canada, Australia, South Africa and New Zealand (to take just the Commonwealth examples) in your hand, that you start to see that there is probably little direct causal correlation between a bill of human rights and judicial interventionism. New Zealand acquired in 1990 a Bill of Rights Act which is modest in the extreme, giving not even an interpretative nudge, much less a judicial override on existing legislation; but in the hands of judges who wanted to make a reality of human rights it has taken wing. A peevish essay here by James Allan criticises them for deciding that, even though they cannot interfere with incompatible legislation, they can at least declare that it is incompatible. For such critics I doubt whether judges can do anything right.

As to South Africa, which, with the demise of the apartheid regime, created a constitution with an advanced Bill of Rights, and a court of high calibre with full powers of enforcement, Saras Jagwanth has the candour to start by saying: ‘It is difficult to be sceptical of the South African experience of entrenching a justiciable Bill of Rights.’ I know of nobody who seriously suggests that South Africa would be better off without constitutional adjudication. One of the constitutional courts’ early decisions both in South Africa and – Wojciech Sadurski tells us in a useful essay on modern Eastern Europe – in Hungary was to strike down the death penalty. It’s no good saying that this is a political, not a legal, issue. Abolition of the death penalty is one of the hot potatoes that lose politicians votes, and it is they – the elected representatives of the people – who in more than one country have with relief left it to their courts to sack the hangman.

The truest note, I think, is struck by the American scholar Mark Tushnet, who always has something sane to say in this area. The US experience of judicial review, he concludes, ‘is nothing to get excited about one way or the other. The Supreme Court has not done much that could not have been accomplished, in perhaps a slightly longer period, through ordinary political action. But what it has done has not interfered much with democratic self-governance.’ What most matters, he concludes, is who gets put on the bench, and I’ll return to this.

Oddly for a book about the United Kingdom, what none of the essays in this book addresses is the pivotal relationship between the European Court of Human Rights and our own courts. The Human Rights Act enjoins our courts to take into account the decisions of the Strasbourg Court; and they would be foolish anyway not to do so, since non-compliant court decisions may put the UK in breach of its international obligation to observe the Convention. Even so, on such issues as enforced self-incrimination the UK courts have begun to plough a deviant and – as I have argued in the LRB (7 March) – welcome furrow. But it became apparent very early in the operative life of the Human Rights Act that our stream of human rights litigation was not going to be anything like Canada’s whitewater torrent, and the reason, looking back, should have been obvious. In Canada the sky was initially the limit of legal argument. A colleague on the Manitoba bench said to me in 1987: ‘Don’t talk to me about the Charter. Every two-bit crook without a defence cites the Charter.’ But the UK in 1998 was not introducing an open-ended rights instrument: it was buying into an established body of jurisprudence which had already worked out and set limits to most of the fundamental issues thrown up by the Convention. In the countdown, judicial and professional training was able to focus on two quite specific things: the methodology of Convention adjudication and the hard-law decisions it had already produced.

In my opinion it is the first of these that is going to have the deepest and – perhaps unexpectedly – the most positive effect on our law. I will give a single example: the concept of proportionality. Many of the rights in the Convention permit encroachments, if they meet specified objectives and are ‘necessary in a democratic society’. One of the book’s editors, Keith Ewing, complains in his uncompromising critique that there is no guidance in the Act or the Convention as to what ‘a democratic society’ means. But the Strasbourg Court realised a long time ago that it should not be lured into making socio-political choices of this sort. Instead, it developed the juristic response that a democratic society was one which would interfere with recognised human rights only if there was a pressing social need which the interference answered rationally and directly and without overkill: if, in other words, the interference was proportionate. Now a good many of our laws do interfere with Convention rights. The law which entitles a lessor to evict a residential lessee, whether absolutely or conditionally, is an interference with the right to respect for one’s home. Courts are generally allowed by statute to make such orders when they judge it reasonable to do so. The effect of the Human Rights Act has been to focus the sometimes fuzzy concept of reasonableness through a lens of proportionality, and so to make judicial reasoning about it both more structured and more intelligible. The liberal scattering of restrictive bail or parole conditions is likewise now having to be thought through in terms of proportionate restraints on freedom of movement. Courts and public administrators are still getting accustomed to this reorientation, and it does not make headlines; but it affects hundreds of thousands of people every year, and to them it matters a great deal.

In addition to the hands-off decisions I have instanced there have also been some significant hands-on ones. The Court of Appeal has used the Human Rights Act to widen the ‘exceptional circumstances’ escape route in the 1997 Act which introduced the two-strikes-and-it’s-life sentencing system, so that it is now only where a repeat offender is a proven danger to the public that the system is triggered. The family court has used the Convention to stop the tabloids hounding the youths who killed James Bulger when they are released. Neither of these two early and important Human Rights Act decisions is discussed in the book.

One would have liked the authors of these sceptical essays to think about unsexy but quite important issues like these. A sceptical piece about the jurisprudence coming from Strasbourg would also have been interesting: how, for example, the margin of appreciation (a meaningless bit of translationese but a deadly legal device) has been used by majorities on the European Court of Human Rights to uphold intolerant national decisions on blasphemy and obscenity. For the present, many of these essays manifest an attitude towards change with which Albert Steptoe would have had an immediate sympathy. Their constant theme is the handover of power to unelected and unaccountable judges. The mantra is so mesmeric (I wish I could have done a word-count) that it deserves a moment’s reflection. Certainly, judges in this country, as in most countries, are unelected. So are monarchs, permanent secretaries, bishops, chief constables, generals and ministers. Yes, ministers. Like senior judges, they are appointed by the Crown on the advice of the prime minister, and they don’t have to be members of either house of Parliament (two of Harold Wilson’s ministers belonged to neither). If you want elected judges, look at those American states where candidates for the bench raise campaign funds from law firms. Then there’s ‘unaccountable’. Ministers of course are accountable to Parliament: those who are MPs answer to our elected representatives; those who are peers to . . . other peers. Judges have to account in public for effectively everything they decide: they give reasons, and if their reasons don’t stack up there are two tiers of appellate courts ready to say so. If the end result is unacceptable to the electorate, Parliament always has the last word; for one of the achievements of the drafters of the Human Rights Act has been to forbid any judicial override of primary legislation which cannot be read conformably with the Convention, and instead to include a neat mechanism, the declaration of incompatibility, by which the problem is passed to Parliament for solution.

I do not imagine that the unelected-and-unaccountable critics want judges who have to be voted in or can be voted out. A judge who can be removed from office by a government or an electorate which he or she has displeased lacks the central attribute of judicial office, independence. Tushnet, faced with the Hobson’s choice of appointment by political deal and election by political campaign, goes for the intelligent high ground of secure but finite appointments. What these contributors are posing, however, is something different: the need to keep political decisions in the hands of politicians. But this raises questions that the book does not answer, for in an important sense every decision of legal principle is a decision about how the country is to be run and is, in that sense, political.

It is Sandra Fredman, among all the essayists in this book, who at least gets the questions straight; and it is not a coincidence that she starts an incisive essay on labour law and human rights by asking whether we ought not to be sceptical about scepticism. If there is a single area in which there is good historical reason not to trust the judges, it is labour law; yet as Fredman points out, it is precisely because this was an area in which no basic rights were ever enacted that for many years the judges’ power to make law was untrammelled. ‘Far from enhancing the power of the judiciary, a bill of rights can in fact constrain that power, provided the legislature retains proper control over the content and interpretation of the rights.’ She suggests that litigation and legislation are more nearly symbiotic than mutually exclusive, and correctly counsels against seeing the one as a substitute for the other. And she focuses, at last, on why diversity on the bench matters: not because people in judicial office will vote for their own class or race or gender but because the breadth of understanding and experience of the bench in its present narrow composition cannot match that of a truly diverse bench. With this, of course, go serious issues of public perception and individual equality of opportunity. The evidence, incidentally, points not to fundamental failings in the judicial appointment process (its secrecy is a separate issue) but to deep-seated discrimination within the legal profession through which all judges have first to make their way. I wonder, however, where the final epithet comes from in Fredman’s characterisation of the bench as ‘largely populated by relatively elderly, white, middle-class Christian men’. I’ve no idea if figures exist for this country, but an American lawyer friend recently heard a veteran local judge explode on hearing that there was a Jewish nominee for a state supreme court vacancy: ‘There ain’t enough foreskin on the supreme court to bait a fishhook.’

Fredman’s scepticism is reserved for the real weaknesses of the present system: the failure to reach behind formal equality to substantive inequality; the limiting to the individual ‘victim’ of the right to litigate a breach of human rights; the idea that the tradition of ‘negative’ rights – that you are free to do anything the law doesn’t forbid – is somehow a substitute for, indeed an improvement on, positive rights. To these I would add reservations of my own which long antedate the Human Rights Act and which will not be resolved, if they ever are, for many years: the capture of rights litigation by the already powerful; the view of society as a billiard table where individuals’ rights simply cannon off one another; the casting of the state in the role of the individual’s natural enemy; the need to protect individuals from violations of their rights by non-state entities often more powerful than the state.

All of these are addressed in places in this book, but most commonly as part of a jeremiad directed not at the deep structures of law but at the modes of its administration. Yet even in these early days one can see some shapes emerging. Almost osmotically, seepage from public to private law relationships is happening: most literally where Parliament has required statutes, including those governing private law relationships (I have mentioned landlord and tenant), to be read into conformity with the Convention; most ineluctably in family law, where the right to respect for family life permeates every argument about the care of children; most interestingly where the gate is pushed open by wealthy and powerful people (Michael Douglas and Catherine Zeta-Jones, for instance, suing a magazine for publishing unauthorised photographs of their wedding), and through it in their wake come vulnerable people like Venables and Thompson.

I used to argue that the advocates of the Convention resembled the Brooklyn woman who came out with chicken soup for an apparently dead man in the road, and when a doctor said, ‘Lady, it won’t help,’ replied: ‘Mister, it won’t hoit.’ Now, I confess, I am less sure. There are still ways in which the new dispensation is capable of doing long-term as well as short-term harm, not least by judicial abstention; but there is also good, some of it unexpected even by the advocates of reform, which it is now clear that it is capable of doing. A judicial hijack remains, no doubt, a possibility; but there is little empirical support so far for the prognostications of a coup by colonels in horsehair which still resonate in these essays. The emergence of the people and authorities of the UK, hand in hand, on to sunlit uplands of human rights protection will stay in the realm of wish-fulfilment; but the downside scenario is unlikely to be worse than Conor Gearty’s chapter suggests – that the Human Rights Act ‘will be buffeted on waves of litigation, thrown back and forth between various litigants, sometimes doing good, sometimes doing bad, occasionally being washed up on useless analytical islands where it will be stuck for years on end until a rescue by some tidal wave of fresh thinking’. In any event, like the weather, the Human Rights Act is there and has to be lived with, and while scepticism will remain a useful posture in relation to it, negativity will not.